Posted
by
Soulskill
on Thursday March 01, 2012 @02:03PM
from the evidence-of-evidence dept.

Geoffrey.landis writes "The courts have now ruled that the public has the right to videotape the police in the performance of their duties. Of course, that doesn't stop the police from harassing people who do so — even journalists, who sometimes have their cameras confiscated. As it turns out, though, they're not always very knowledgeable about how deletion works. I would say that erasing, or attempting to erase, a video of police arresting somebody illegally (How can a journalist be charged with 'resisting arrest' when he was not being arrested for anything other than resisting arrest?) is a clear case of destruction of evidence by the officers. Destroying evidence is obstruction of justice. That's illegal. Why haven't these police officers been arrested?"

he wasn't arrested for filming the police, he was arrested for disobeying a dispersal order.

I'm not saying whether that's right or wrong, and I am aware he is a member of the press (though with some claiming that ANYONE can be a member of the "press").

However, it's also possible for police to issue a lawful order to disperse that, if not obeyed, could result in arrest — alongside a charge of resisting arrest.

The individual was being arrested for failure to obey a dispersal order, which was exactly what the officer said, not for "resisting arrest".

Further, it's the submitter's OPINION that this person was being arrested "illegally". That's something the courts will now decide. The troubling part is that the video would probably be the key evidence in such a case, I agree.

Of course, it's pretty clear that he disobeyed a direct (and likely lawful) order to disperse, and whatever happens after that I sort of lose interest in.:-/

The good news is that, in a court, if one party destroys evidence, the court is required to assume that the evidence is favorable to the other party. I.e. if the cops destroy a video, then the court assumes that it would be in favor of the defendant.

The simple reason that police are not arrested for destruction of evidence is that the police enforce the law. And the police cover for each other when they break the law. Therefore the police are above the law.

Worth noting the difference between de facto and de jure here. The police are not above the law in a purely de jure sense as there is theoretically some degree of accountability. Practically speaking, in most cases, they are above the law to some extent in a de facto sense, because it's extremely difficult for ordinary citizens to make complaints against them stick in court.

(Although in most states, the state police do have oversight responsibility over local PD's, and the FBI has oversight responsibility over state and local police. Which is one of many reasons local PD's aren't fond of state police or the Feds. And one reason you do want to be able to find contact info for your state police and FBI in the phone book.)

he wasn't arrested for filming the police, he was arrested for disobeying a dispersal order.

No, RTFA.

Miller was charged with a single count of resisting arrest. "Aside from a blatant violation of Mr. Miller’s First Amendment rights to record matters of public interest in a public place," Osterreicher wrote, "we do not understand how, absent some other underlying charge for which there was probable cause, a charge of resisting arrest can stand on its own?"
"We believe that the recovered video of the incident will show that officers acted outside of their authority, in violation of the First, Fourth and Fourteenth Amendments of the United States Constitution as well as the Privacy Protection Act of 1980 and similar protections provided by Florida law," he wrote.

"How can a journalist be charged with 'resisting arrest' when he was not being arrested for anything other than resisting arrest?"I believe that resisting arrest is an umbrella term that can apply by itself.If a cop is legally pulling you over to simply check if you are intoxicated (etc) or just asking to talk to you on the street and you run away then legally you are resisting arrest even though you where not being arrested in the first place.

Most decent photojournalists know every slight of hand and trick in the book when it comes to keeping the material, especially those who are used to working in corrupt countries. A little sleight-of-hand and the cop is smashing a blank tape, confiscating a blank hard drive on a different camera, or ignoring the memory stick the report has under his tongue.

Please don't make comments if you don't know what you are talking about! (oh, wait, this is slashdot...) And forget?? Where you live 'people' might forget but here in New Orleans we forget very, very little of Katrina. Officers that did the shooting have been convicted and sentenced. The mistrial you point out is for one officer who was on the cover up side. Dugue was not even involved in the shooting. Please don't spread ignorance. (and don't back-peddle saying it was the cover-up dude getting off. He's not off, there's just been a mistrial)

What you are talking about is Spoliation (seriously, that's the spelling), and it can be a jury instruction, where the judge tells the jury that they should assume that the contents of the destroyed evidence (tape, image, whatever) showed that the officer was doing whatever it was the photographer says he was doing.

It could be worked like this hypothetically: I take video of police brutality, some officers come over, rough me up, take my tape, and I yell out: "This is police brutality! I'm going to sue you! That tape is evidence!" If the cop then deletes the images, destroys the tape, etc, then he has committed spoliation. When/if I sue the cop, and depending on jurisdiction, I can either: a. File a motion for sanctions and fines because the cop destroyed the evidence; b. File a motion to have the judge tell the jury that they should assume that the tape showed the judge roughing me up; or c. File an civil complaint on the topic of spoliation alone, and then even if I lose on the battery case, I might still win on the destruction of evidence case.

Jurisdictions very, don't try this at home, try not to go out into the world with a machine that still uses tape (my hypothetical apparently took place 10 years ago). There is a decent and free law journal article on the topic in Illinois, and we are very much having the video-tape-the-police-discussion here. http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1536805#%23 [ssrn.com]

Problem here, he wasn't charged with anything other than resisting arrest. He was not charged with failure to obey a dispersal order. Funny, because I was not aware that charge could stand on it's own. Being a member of the press, he was allowed to be there according to the First Ammendment " record matters of public interest in a public place.", meaning he was allowed to be there to document the event as a member of the press. The police then attempted destroyed evidence of their unlawful actions. The attempted deletion of the video is a blatant admission of their guilt, these officers should not only lose their jobs, but he charged with obstruction of justice and serve prison time.

The individual was being arrested for failure to obey a dispersal order, which was exactly what the officer said, not for "resisting arrest".

No, he wasn't. From TFA:

Miller was charged with a single count of resisting arrest. "Aside from a blatant violation of Mr. Miller’s First Amendment rights to record matters of public interest in a public place," [National Press Photographers Association General Consul] Osterreicher wrote [in a letter to the Miami-Dade PD], "we do not understand how, absent some other underlying charge for which there was probable cause, a charge of resisting arrest can stand on its own?"

Now, I agree that there are occasions where the police can give lawful dispersal orders, but I don't believe those orders should apply to members of the press who are documenting events (and not participating in whatever actions are causing the police to call for dispersal). Of course, as you point out, it is extremely difficult for police on the ground to identify who is "legitimate" press (and hard for us as a society to decide what "legitimate" press even is). But the thorniness of that problem should not give police the blanket authority to disperse/arrest everyone and prevent documentation of such events.

You mentioned "two separate things": the charges for which he was arrested; and the "opinion" that the arrest was illegal (it's a minor point, but I agree with you). You left out a third thing, which is probably the most important part of this piece.

After he was arrested, while the police had his camera in custody, they allegedly erased video of the events up to and including his arrest. I can't think of any reason this can be justified. If the footage was taken illegally (which may be the case since the appellate ruling referenced was for a MA case and may not apply in FL - IANAL), then the police should have preserved the evidence for trial. If the footage was not taken illegally, then there is no reasonable cause for them to delete it either. I don't think I would hold the police to a 100% standard in terms of returning property whole to suspects - it's possible if they impound your car that it get's dinged accidentally in the impound lot; your phone or computer may get dropped (not "dropped" - that would be a problem) on the floor of the evidence room. Accidents happen and like I said, I would expect the police to be perfect. But here it seems someone deliberately access the camera's memory and selectively deleted videos. It's hard to construe that as accidental.

Bottom line, once the police have evidence in custody, they are obligated to preserve it. That apparently didn't happen here, and if the allegation are true and there are no repercussions, then it is indeed a scary (police) state we live in.

In which case a judge would not be able to declare a constitutional amendment unconstitutional, but this has happened.

But, and get this, only if it violates other parts of the constitution.

As far as I understand it -- and I am neither a lawyer nor a US-American -- amendments to the US constitution can only be made ineffective by the Supreme Court declaring them unconstitutional (i.e. it violating either a prior or a later, other amendment), but only repealed by the legislative branch (Senate/House of Repr.) by introducing a new amendment; which has happened with the 18th amendment (prohibition) that was repealed by the 21st after the Supreme Court ruled it violated the 4th and 5th amendment.

To put it in CompSci terms: The judicative (courts) only did a sanity check on the input, whereas the legislative (parliament) took measures to actually clean up the input. So the former only prevented bad input from producing bad output, which caused the former to make sure that that brand of bad input is not possible at all anymore.

You could say that in these cases, the courts can only negate or affirm, but not ask a new question. They might state their opinion that a new question should be asked, but can't ask it themselves.

Although many officers seem to get away with some outrages and possibly illegal behavior there are ways to counter this.At the City level you have the following options:1. Most large Cities have an internal affairs office which is works as a peer review and is only accountable to a police commissioner or possibly the chief of police.
But they are also sill accountable to the Mayor and city council.2. Some large cities also have a citizen review board that reviews any suspicious behavior conducted by the police.3. Some large cities have both an internal investigation and citizen review board.4. Also the state police agencies usually have some kind of mandate to investigate police departments with a history of misbehavior.5. Small departments are usually monitored by the mayors and city council.

Bottom line you have avenues to lodge a complaint, just make sure you have all your ducks in a row first, and have solid evidence to back it up.

At the State level:Many State Law enforcement Agencies are accountable to the Governor, the State Attorney General, and State Legislators.They will also have some kind of internal review process.

At the Federal level:All Federal Law Enforcement Agencies are accountable to the Office of the President, and Congress.They will also have some kind of internal review process.

So my story:I once got harassed and ticketed illegally while my car was parked at a park on the street swapping a flasher solenoid for my blinkers, and I was an Air force Security Police but not in uniform.After running up the city chain of command I resorted to writing to my congressman Leon Panetta.The charges were dropped, and the officers involved were suspended without pay. (Circa 1979)Thank god or I would have had a really awkward meeting with my commander.

Odd, I once commented, with some indignation, that I was annoyed that a police cruiser was parked in a supermarket lot, with no one inside, and the engine running. I think I said, (of the non-present cop), "What an idiot! Leaving the car running like that!". It was an opinion.

Well, said "idiot" appeared, and asked me if there was a problem. I responded (politely) that I found it annoying that one would leave a car, with its engine running, like that. He informed me "It's the law". I didn't know if such police protocol was actually dictated by statute or not, so chose not to disagree. I STILL think it is idiocy, whether required by statute, or not. Officer "idiot" was in the way of my path, so I asked him, "Am I under arrest?" He replied, "No." I then asked "Am I free to go?" I was THEN told "No," and detained in the back of the running crusier while he conferred with his partner to determine if I should be arrested. I was warned that "next time", I'd be arrested for "disorderly conduct", and released.

So, now expressing an opinion in public is "disorderly conduct". I was not in "anyone's face", blocking anyone's path, or following anyone to express my opinion to them: I looked, spoke my mind, and kept on my way.

The purpose of an arrest is to bring the arrestee before a court or otherwise secure the administration of the law. An arrest serves the function of notifying the community that an individual has been accused of a crime and also may admonish and deter the arrested individual from committing other crimes. Arrests can be made on both criminal charges and civil charges, although civil arrest is a drastic measure that is not looked upon with favor by the courts. The federal Constitution imposes limits on both civil and criminal arrests.

An arrest may occur (1) by the touching or putting hands on the arrestee; (2) by any act that indicates an intention to take the arrestee into custody and that subjects the arrestee to the actual control and will of the person making the arrest; or (3) by the consent of the person to be arrested. There is no arrest where there is no restraint, and the restraint must be under real or pretended legal authority. However, the detention of a person need not be accompanied by formal words of arrest or a station house booking to constitute an arrest.

The test used to determine whether an arrest took place in a particular case is objective, and it turns on whether a reasonable person under these circumstances would believe he or she was restrained or free to go. A reasonable person is one who is not guilty of criminal conduct, overly apprehensive, or insensitive to the seriousness of the circumstances. Reasonableness is not determined in light of a defendant's subjective knowledge or fears. The subjective intent of the police is also normally irrelevant to a court's determination whether an arrest occurred, unless the officer makes that intent known. Thus, a defendant's presence at a police station by consent does not become an arrest solely by virtue of an officer's subjective view that the defendant is not free to leave, absent an act indicating an intention to take the defendant into custody.

I have highlighted the important points. One can be arrested on the scene of a possible crime and let go with no charges. One can be arrested by the officer(s) telling one not to leave because he wants to question one. Then, by attempting to leave, one can be arrested for resisting arrest, but this time taken into custody, transported to jail, booked, etc. It wasn't that long ago that one might be arrested for being drunk, dropped in the drunk tank, then let go without charges when one sobered up.

This is yet another problem with the ambiguity of the English language especially in the case of legal or professional jargon as opposed to general usage.

The only way that a constitutional amendment could be declared unconstitutional is if the process through which it became a part of that constitution was done in an unconstitutional manner. That is a very small loophole, and usually is something that is almost never tried (and has thus far always failed so far as amendments recognized by the U.S. Secretary of State and/or the National Archives).

That said, there are some rather vague parts of the U.S. Constitution that are open to interpretation, such as the Interstate Commerce Clause and finding "new rights" not explicitly mentioned in the Bill of Rights (such as what Roe v. Wade attempted to do in terms of a "right to an abortion").

The main thing that happens in terms of constitutional review though is that statutory law can be "set aside" because it conflicts with the constitution. New law isn't created, but instead the law is treated as if that law never existed in the first place.

Where American courts do create "new law" is with case law and "common law", when a legal question comes up that statutory law and constitutional law simply don't cover the situation. Most states also recognized earlier English "Common Law" precedence, at least the "Common Law" that existed prior to July 4th, 1776. It is rare that somebody cites legal precedence from the 15th Century to win a legal argument any more, but it is still a possibility in 49 of the 50 American states (Louisiana excepted.... because they use the Napoleonic Code instead and follow French/Spanish/Roman precedence instead of English).